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Comparative Public Law - American System
Comparative Public Law - American System

Resmi Hoxha,

Mob.nr: +377 44 169018
Resmi Hoxha,
Email: info@avokatura.com
Zahir Pajaziti Square, H-1 No.8
10000 Pristina
Kosovo
 
American system
America is a state whose right is based on Anglo-Saxon law. This family also includes states like New Zealand, Australia, India, Pakistan, Canada, Ghana, Tanzania, Kenya, Nigeria. It should be mentioned that states that have a mix of elements of Anglo-Saxon and Roman law are: South Africa, Israel, the Philippines? and Cyprus (Greek). When we quote that common law law touched American law, we should not forget that we refer only to private law, especially in civil law and partly to commercial law, including some basic principles of court procedure and development. In other branches, especially in the public one, we had no influence on the common law right. The impact of common law nowadays in America is summarized in three basic points: 1) In the central role of legislation (court decisions), despite the fact that in America the obligation to take into account the perpetrators is not as chaotic as in England. 2) In the traditional vocabulary and the way of thinking and analysis that is carried out in texts; and 3) In the high positions occupied by judges and courts in America.
Philadelphia Congressional Congress
Philadelphia's Constitutional Congress (Congress) was held in 1787, which brought federalism to the US state. Very important decisions were made in this convention that changed the constitutional performance of the whole world. We had a clash between federalists and localists who ended up with the benefits of both sides.

The federalists first won: 1) The Constitution came directly from the people, and not from the federated states, through an international pact. 2) Transfer of a significant competency package to the federation's hands such as: Defense, International Relations, Citizenship, Copyright and Trade.
The locals won firstly: 1) Recognizing the principle that any competences that are not attributed to the federation's constitution belong to the federated states and 2) the federation's federation's participation in the election of several federal bodies.
Although the aforementioned sanctions state that the role of the federal state in comparison with the federated states is of a lower power, since: 1) trade, international relations belong to the federal state; and 2) there is a constitutional provision that determines that Congress can legislate when and when it deems fit (proper and proper clause). Efforts by federated states to impose constitutional barriers on central government, such as the North Carolina case, which sought to declare a federal tax invalid with the skepticism that this tax passed on the Nullification Proclamation of 1832, resulted in a complete failure.

America's Constitution
America's constitution has been in force since 1789 without interruption and substantial changes. This is the oldest constitutional chart in the world. At first there was a text of 6,000,000 words and 7 articles. Even today there is a small text on the page. Before the Constitution we had the Declaration of Independence in 1776 which marked the division of America from England and sanctioning the basic principles of the American Constitution. This Declaration followed a short charter of rights that was incorporated into the Constitution. Since then there have been 17 amendments or most important annexes in a package after the civil war 1861 - 1865. The present American Constitution is based on the principle of popular sovereignty and has a character of a social contract, ie an agreement between people and power.
Separation of powers
Both the federal constitution and the federal states' constitutions sanction the separation of three powers, although it must be said with differences between them. The executive power in America is much more independent in America than the legislature. The US President and the Presidents of federated states are directly elected by the people and do not relate to or depend on the legislative power. This independence has its disadvantages as it may lead to a failure to resolve the President's obligation to resign or disband Congress by the President and declare of the election. One? such occurred in 1995-1996, during the approval of the American draft budget. According to the Constitution ministers (secretaries named in America) and judges are proposed by the President and are appointed with the approval of the Senate. Recently the Senate was very critical of the personalities that were proposed to the Supreme Court of the US, with the example of denying the well-known American lawyer Robert Bork for political reasons. The president has the veto against laws that can be overlooked by a qualified majority. The president is chairman of the armed forces but has no right to declare war or to announce general mobilization without the support of the legislative power. Both the President and the judges and senior officers may be tried by the Senate accusing the Parliament of several crimes such as: 1) Tradition, 2) Corruption or other crimes such as misuse of office. In the penalty case, by a majority of 2/3, they lose their post and immunity by exercising prosecution in this case. Until now, no President has been condemned with this procedure. A president was accused (Andrew Johnson in 1868) but escaped for one vote. Nikson resigned before the procedure started. A war effort in 1805 was undertaken against Samuel Chase, who supported the strengthening of central government, but without success.

Any tax or public expense needs a legislative approval. Legislative power has the ability to limit the boundaries of the judiciary or to abolish the appellate jurisdiction of the United States Supreme Court, but not its original jurisdiction, since the Constitution recognizes this court clearly and clearly. The US Supreme Court first recognized the constitutional control of the laws and the legality of acts of executive power.
Legislative power
The federation and the federated states, apart from Nebraska, divide the legislative power into two bodies: 1) the Parliament and 2) the Senate. The Senate is made up of fewer members than the Parliament with a longer term. The Congress includes these two bodies, whose members are directly elected by the people. The American constitution correctly defines the electoral system, including the election date of lawmakers and the president (the first of November). The parliamentary elections take place every two years and the senators, but with the difference that we have a renewal of them at 1/3 as they have a six-year term. All of the abovementioned deadlines and of the President end on 20 January following the above-mentioned elections. The electoral system with every detail is completed and supplemented by any federated state. The US Constitution does not contain any provision referring to political parties. Congressional dissolution opportunities and early elections do not exist (unless the aforementioned case). Neither Congress can resign the President. The US president does not often belong to the party that controls Congress. Federal laws require a simple majority of both troops. Some laws can only be initiated by Parliament, such as laws of a taxation nature. International agreements are ratified by the President's proposal and the Senate's approval by 2/3 of the votes. The president has limited legislative power to issue executive orders against the exercise of his duties deriving from the Constitution.
An institution known in America, but not so much in Europe, is the Permanent Commission, or rather the Permanent Committees of the Parliament and the Senate. Parties designate an analogue? of their power, the members of these Commissions, who are elected by the chairman of the oldest member. Any draft law that enters into a legislative body is sent for processing to one of these Commissions or Subcommittees. These committees address their issues publicly and are not limited to conversations, but can call up during the stage of collecting real-world witness data, which may be senior officers. These people are forced to appear after otherwise punished by imprisonment. All the material collected by these commissions is published by the state at low prices. These committees are often involved in political issues of the time, causing fear and terror in public administration. The withdrawal from President Nixon's post started within the talks of these commissions (Subcommittee of the senate dealing with the issue of electoral procedures)
Executive Power

The president has in his hands the powers of the head of state and the head of the armed forces. Represents the country and exerts foreign policy with a direct Senate participation (international agreement and war revelation) and indirect influence of Congress. Issues law enforcement decrees. It is elected every four years by the people as well as the Vice President, but the latter without a restriction on reelection. The main task of the Vice-President is the replacement of the President. Their election is carried out by a majority of the electoral college in which federated states are represented by elected representatives equally in number with the majority of senators and parliamentarians. The Constitution does not deal with the organization of executive power. The President exercises his duties with the support of the Secretaries whom he appoints with the approval of the Senate and ceases the President. Ministers (secretaries) are not allowed to be parliamentarians, ie members of Congress. Ministries are divided into several branches, commissions. The Council of Ministers is an informal body that is chaired by the President. Ministers are not obliged to answer the questions that come from legislative bodies under the European model where the opposite happens. An innovation of the American system is the exercise of power by administrative agencies. The most important agencies are the ones that have the commission denomination: Federal Trade Commission, Securities and Exchange Commission, Interstate Commerce Commission. These commissions are legally established by the Congress and are deployed to a ministry and exercise a secondary legislative work with the approval of the Congress, such as: Issuance of regulations, the adjudication of some disputes that arise and the control of secondary ministries always. The chairmen of these commissions and their members are appointed by the President with the consent of the senate for a fixed term and exercise their duties independently and without direct state intervention.
Judicial Power
As after Article 3, paragraph 1, judicial power is exercised by the United States Supreme Court, which was established in 1790 and by the lower courts established by Congress. In the second para- graph, the jurisdiction of the ICJ and the manner of election and appointment of judges are defined. The constitutional framework is supplemented by the law of the courts of 1789, as modified by the judicial habits which were created by this court itself. Congress has established a full system of federal low courts. In the first instance there are now 91 federal district courts divided across the country. First instance judges reach 600 in numbers and are assisted by 500 enforcement officers and 300 judges displaying bankruptcy letters from various firms. The second instance has 13 federal courts of appeal.
Foreign Relations and Defense
America has a face in the outside world as federated states are simply its administrative subdivisions. They are not entitled to enter into international agreements or agreements between them (interstate compacts) without the consent of Congress. Also, they can not hold diplomatic ties with foreign states and gather soldiers. As mentioned above, war and defense belong exclusively to the federal state.
Citizenship is another important area that belongs to the federal state. Citizenship of the federated state simply shows an analogous relation to that of the apartment.
Export Import
The Constitution defines the taxation of imports and exports to the absolute power of Congress and in concrete the circulation of goods from and to America is subject only to federal taxes. The constitution ultimately gives Congress jurisdiction over diplomas, inventions, copyright and bankruptcy. Congress has legislated all the above areas and distinctive signs as well.

Citizens' rights
The Charter of Fundamental Rights is included in the American Constitution, which forces central government fully and is dependent on the defense of the judicial power. America denies recognition of economic and social rights by simply calling it legally undefined and citing that it is merely a line of conduct. There are, however, constitutions of federated states that include positive rights such as: the right to education. The constitutions of these states have tried to materialize by reaching the point of determining their way of exercising, as has happened in the state of Ohio
Legislation. Judicial Decisions
Judicial decisions are important because we can see how the US state functions and in particular its constitution works. A court decision showing an interest in comparison to the EU is New York v. U.S. 1992. Disposal of nuclear waste concerns both the federal state and the federated states, as both sides have to find a solution. Congress issues a law according to which any federated state is responsible for nuclear waste produced on its territory and unless certain moods are determined, nuclear waste will be considered a fortune of federated states and these states will be held accountable. The American Supreme Court declared this unconstitutional law to the skepticism that violates annex 10 of the Constitution (powers which are not defined in the Constitution for federated states belong to them exclusively). In the opinion of the majority, the fact that Congress's power also covers the disposition of nuclear waste justifies its decision. The minority expressed her surprise for this prototype interpretation.
Another important decision is Cipollon v. Ligget Group 1992. The issue that was raised was on the subject if the federal legislation imposing cigarette manufacturers to establish an alarm system, the tobacco smoke signal ended up to date with the result of the lack of any power from the states of federated ???. The US Supreme Court's response was positive, but limited because it cited federal states could fine tobacco-producing societies in cases of fraudulent promises such as: By advertising or disposition of their products. The consequences of this decision are extended to any other harmful product.
Courts
In each federated state, there are local lower courts or municipal courts, specifically the criminal court, for violations of the KQR (Road Traffic Code) for civil, family and inheritance differences.
As after the prevailing thought and American practice, the Supreme American Court has an original constitutional power; to regulate with an internal regulation its functions. For a century, the number of judges remains at nine despite various attempts by the legislative power to increase this number (such an attempt was taken by President Rusvelt in 1937 to increase the number of judges to 11, but there was a huge increase in public opinion public and competent bodies after being translated as a direct intervention in the judiciary). Members of the High Court and its President are elected and appointed by the President with the consent of the Senate with 2/3 of the vote. Similar is the appointment of all federal judges. Appointment is not directly hierarchical, nor is it required for judges to have formal qualifications. It is not necessary to be the holder of a law degree. Their rogue is not allowed to sit during their mandate.

Jurisdiction and Jurisdiction of the Court
Article 3 The second paragraph of the Constitution stipulates that the federal judicial power extends to all matters that: 1) include the Constitution, laws and international treaties of America, 2) Include ambassadors and other diplomats, 3) raise issues of maritime law and all other issues with differences = controversies, 4) those issues in which America is a party to court, 5) among federated states or federal states and citizens of a federal state or citizens of different federated states, 6) Between the federal state or its citizen and a foreign citizen or state. With annex 11 of the Constitution it was clarified in 1798 that federated states are not indicted in federal courts by citizens of federal states or foreign states.
The constitutional jurisdiction of the US Supreme Court is original (first instance) for matters involving ambassadors or other diplomats for differences that include a federal state. In all other cases, the jurisdiction of the Court is appealed. This appellate jurisdiction of the Court extending to matters arising from federal lower courts as federated high courts is of two kinds: 1) Mandatory and 2) Non-enforced. There are 4 votes out of nine for the exercise of non-compliant jurisdiction. Compulsory jurisdiction covering 10% of cases includes decisions where: 1) federal laws are declared unconstitutional, 2) federal courts reject unconstitutional objections to the laws of federated states, 3) federal courts decide that federal law violates the federal constitution or the law federal. Over 70% of binding decisions and 50% of irresponsible decisions are completed by an expedited procedure with the result that the Supreme Court deals in detail with 70 to 80 issues per year. As the ruling Constitutional interpretation prevails, the Supreme Court does not issue advisory decisions, ie it does not answer hypothetical questions outside the framework of an existing pragmatic disagreement. The right to an individual claim is fully recognized but the parties must have a legitimate interest.
The lower federal courts judge not only issues involving federal law regardless of the sum but also the civil and commercial lawsuit of federal law when the parties are residents of different federated states and the amount does not exceed $ 50,000.
The Supreme Court always judges with the presence of all members and with open doors. First-instance federal courts conduct hearings usually in a single member and three-member appeal. Decisions are taken by majority vote and no non-participation is permitted, only in justified cases. Thoughts are signed and published literally. In addition to the original jurisdiction, the Supreme Court functions as a high appeal court (not as an abrogating court, ie examines not only the legal but also the real one of the case). The decisions of this court compared to the European Courts are more detailed and with an indicative form (type of story of events occurring). Court decisions have retroactive effect.
Historical Development of the High Court.
It is the oldest court in the world. In 1990 he filled 200 ??? work without interruption. It is the court that invented the constitutional control of laws and legal acts and constitutionally sanctioned the independence of the judiciary and the principle of legality. The prototype of this court lies in the fact that it is a high regulator and balances the links between the federation and the federated states. This court passed in several stages to reach where it is located today. The first stage covers 75 years until 1865, years characterized by a successful attempt by this court despite the absence of some concrete constitutional provisions becoming the highest guardian of US institutions. The second stage continues from 1865 until the 1930s when we have the tendency of this court to support the constitutional protection of economic rights (freedom of exchanges and non-violation of property).

Types of constitutional control
The constitutional control with the criterion of the time being developed is two types: 1) The preliminary constitutional control belongs to the legislative factors and aims at the constitutional control of compliance of the law with the Constitution during the voting stage, ie prior to its entry into force and is called by theory of political control of the constitutionality of laws. This control may also belong to the court and in this case constitutes the rule exemption being a repressive judicial control. Constitutional oppressive control takes place during the law enforcement stage, ie after its voting, publishing and publication, and belongs to the courts.
Constitutional control based on its provocation and development
Constitutional control is tested and developed in two ways or systems: 1) It is first a check on a concrete matter and is wide and secondly 2) summarized and abstract.
In the first case it is mandatory for the judge of every instance who decides on the constitutionality of the law in the context of a concrete case in hand. In the latter case, constitutional control is conducted by a high court that has the power to decide on the constitutionality of the law or a law provision. This decision of this court which is named Constitutional Court is erga omnes. As a conclusion we cite that while preliminary control is always abstract and summarizing the opposing control is two concrete types = concrete or abstract.
Constitutional control began to be implemented for the first time in America shortly after the Declaration of Independence was announced. The question that was raised was whether federal legislation could be subject to constitutional control. At this point, the US Constitution is silent. The answer to the above question was given to the constitutional control that was first applied to America in Marbury v. Madison (1803), which clearly outlined the principle of the duty of constitutional control of laws by all courts. The issue was such a problem and belongs to the period between the two presidential mandates (1801). During the departure of President John Adams and the coming of power to New President Thomas Jefferson, he was replaced by some of his country's benevolent judges' seats, among them John Marshall, John Adams's government minister in the position of Chief Justice ) of the Supreme Court and of William Marburi in a lower rank of the Justice Judge of the District of Columbia. These tribunals were named after the "midnight court", because their nomination was made two days before the new President Thomas Jefferson took office. The appointment of several judges failed to be completed after the nomination letter was handed over before the new President Thomas Jefferson drove his duties, which denied through his minister James Madison the appointment of other judges. William Marbury addressed the High Court requesting the implementation of the 13th paragraph 13 of the Judiciary Act of 1789, which assigned the court's judicial order to appoint judges. When the case went to the hearing, the President expressed the opinion that neither the High Court nor any other court could force him to take the act. Minister Madison relied on this opinion and denied his presence at the United States Supreme Court. The Supreme Court ruled that: This court is competent to adjudicate the constitutionality of the laws because 1) the US constitution which is a written act constitutes a formal law with a greater force under Article 6 of the constitution and 2) the interpretation of laws belong to the courts with regard to the substance of the case. In this way, this court introduced the constitutional control of acts of legislative and executive power, and secondly, cited the cruel maneuver of the court, which did not irritate the relations with the US President so that tribunal members pay the consequences.

Attorney's profession
It is estimated that there are about 400,000 attorneys in America. Each year 40,000 studies are completed. Women's analogy has risen from 1-30 in 1970 to 10-15 nowadays. Exercise of practice has been abolished and newly graduates can take an early examination at the High Court of their state. To hold the lawyer his license in every state should attend information seminars on juridical science developments for each state. The notary institution as it is known to us is unknown in America. Lawyers are employed in large offices that are specialized in many areas, thus employing a large number of individuals and providing a comprehensive legal cover. Officers ie lawyers in these offices are of two types: 1) Partners and 2) Associates. The relationship between them is a partner with five associates. Payment is variable. It can be fixed hourly or as it is now applied with bonus for any issues they undertake.
Entrance to US Law Enforcement
Entrance to the American Legal University is made up of elements of the same weight. First, the college average and secondly, the points obtained from a test conducted by the University that measures not only knowledge but also skills for legal studies.

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